Don’t Panic Keep Selling

This is a guest blog post by Cynthia Stine of Online Sales Step by Step, an Amazon Seller Advocate

The more you sell, the more likely that you will one day get a notice through Amazon’s message center notifying you that you are in violation of someone’s copyright. The notice will often imply or directly state that legal action is pending if you don’t remove your listing immediately.

What to do? Savvy third-party Amazon sellers know that some of these are all bluster and others are serious but it is hard to tell which is which. Here’s a few pointers to help you:

Who sent the notice? If the notice is coming directly from Amazon and it states you’ve violated someone’s copyright, it will also include contact information for the company in question. This is a legitimate complaint that you MUST address. To not address it puts your account at risk even if you don’t plan to sell the item any more.

This email is coming to you because the rights holder complained to Amazon legal who supported their claim. They did this because the complainer was able to prove that they were the rights holder. They may have done this through Amazon’s brand registry or they may have provided paperwork showing they own the rights.

Amazon won’t get involved in the dispute or confirm the veracity of their claim – merely that they provided sufficient paperwork to indicate they have a claim. They leave it to you to work it out with the rights holder.

Did you create the listing? If you created the listing and used pictures or descriptions from the manufacturer, off of eBay or anywhere squirreled away on the internet you most likely DID violate copyright if you didn’t get express permission to use these pictures and description. If you did NOT create the listing but are merely piggybacking on it, then you can explain that to the complainer and help fix the listing.

What is the brand? Some brands are very aggressive in protecting their rights on Amazon.com. If you are selling a name brand, then you are more likely to get an inauthentic claim before copyright infringement. Why? Because they are faster and easier than going through Amazon legal. Nonetheless, if you have a big brand breathing down your neck, you are most likely not going to win.

How belligerent is the complainer? We’ve seen some really aggressive letters from private label companies sent directly through the platform to our clients. They don’t go through Amazon legal because they are hoping to intimidate sellers off their listings without the added expensive and the relatively slow process. These claims are the ones that give sellers the most heartburn because they don’t know what to do or how seriously to take the claim. The other seller could be full of…it and a complete liar. More on this in a minute.

Have you experienced suspicious behavior before this claim? For some of my clients, they’ve noticed a pattern before they got this claim. They may have had to fend off inauthentic or counterfeit claims on this ASIN before this latest claim popped up. This is another strategy used by sellers to get other sellers off their listings. If you are confident that you have the right to sell this product and are using your own picture and description on the listing, then you should fight. They are using these tactics because they don’t have Amazon’s support behind them. Without Amazon’s support they are all bark, no bite. All they can do is harass you.

Are you selling a generic product on a branded listing? I see this a lot. It is a gray area. The original seller who created the listing may have thought they were protecting themselves by putting a brand on their product, but if they didn’t do it correctly, then they are selling a generic and Amazon will not support them if you piggy-back on their listing. As long as your product is exactly the same (without the sticker), you can sell on that listing. If, however, the seller has done it correctly, then they can kick you off their listing. Take a long look at your product and make sure you have listed it properly.

Resolve the Claim

Now that you’ve looked at your product and the listing, here’s what you need to do:

Contact the rights holder. If the email came from Amazon, act immediately. Send a polite email to the rights holder asking: “Can you please share with me how you think we have infringed on your copyright? We are eager to clear up this issue. It was never our intention to infringe on a copyright.” Keep it polite and vague at first. See what the issue is. We often find that it is the photo or description – both of which are easily fixed by taking your own photos and re-writing the description.

Fix the problem. Once you know what is going on, try to fix the problem. Sometimes it isn’t even you. I’ve had clients who were authorized sellers of a product get booted off along with all the other sellers. Once they provided a letter to the complainer (usually a lawyer hired by the rights holder or an internal person in charge of brand management) proving they were authorized, they were reinstated on that listing immediately.

Ignore it. If the letter is coming directly from another seller rather than Amazon, you may choose to ignore it. The only company on Amazon that can really hurt you is Amazon. If they are not supporting this claim, then it may be a bluff. At the very least, they cannot kick you off the listing. More on this later.

Or…give up. If you are selling luxury brands like Versace, Coach or Fossil Watch and you did not buy directly from them…you are probably going to lose. They will throw inauthentic or counterfeit (or both) at you first (usually) and if you somehow pass that hurdle, they will file a copyright infringement claim. Their goal is to tie you up. Once an issue is resolved, they have a special email address where they can let Amazon know the situation is fixed. If they refuse to send that email…? That’s right, you are probably out of luck if it is a major brand. They have the lawyers, the money and the will to pursue this until they exhaust you. Only you can decide how much time and energy you are going to put into defending yourself.

Fight back. If the email you got is not from Amazon and you are getting nowhere with your polite approach, then you may be dealing with a scoundrel who is doing this as a tactic to intimidate or tie you up. Even if the letter came through Amazon, if the complainer is not responding to you, then you will eventually have to tell Amazon if you want to sell on the listing again.

Not supported: In this case you need to look at the entire situation with the product. If you feel you have a legitimate right to sell this product and you did NOT buy from the gray market, then you are probably experiencing a tactic. It would be especially suspicious if you had recently fended off an inauthentic or counterfeit claim on the product. In this case, you can file a policy violation with Amazon against the seller. Be polite. Ask for Amazon’s help. If you suspect the name of the seller, use it. If you don’t know for sure, ask Amazon to look into it for you. Focus on their policy violations, NOT THE COMPLAINER’S CLAIM:

They improperly used Amazon’s platform to communicate with you

You suspect that they purposefully made straw purchases and returned them with “counterfeit” or “inauthentic” claims to boot you off the listing.**

They never intended to keep the product.

This was a manipulation of the platform.

You recently proved to Amazon that your product was authentic and immediately after, you got this letter claiming copyright infringement.

Supported: If the complainer is not getting back to you after a week of trying (start with email so Amazon can see that you tried, and then call them), then you can rightly complain to Amazon that this may be a tactic on the part of the complainer. As above, be polite in all your communications. If you decide to file a policy violation against the so-called rights holder:

Focus on what you have done to resolve the issue (3 emails, 3 calls, closed the listing…etc.) and how much time you gave it (at least a full week).

You suspect this may be a tactic rather than a legitimate claim by a rights holder because they are not responding even when you called them directly (or maybe you can’t find their phone number/website…that’s suspicious, too)

They never intended to resolve the issue, they just wanted you off the listing. This is a manipulation of the platform and a policy violation, if so.

You recently proved to Amazon that your product was authentic (if you did) and shortly after, you got this letter claiming copyright infringement.

** If they buy the product and keep it, they are more likely to be legitimate and serious. This is allowed by Amazon. It is the guys who buy and return and who never intended to keep the product who are violating policy.

In all cases of filing a policy violation, you will not get a response back from Amazon. They never reveal the results of their investigations. However, you may find the claim is suddenly dropped and – as happened in one of our cases – the other seller is suddenly suspended/gone from the platform.

The most confusing copyright infringement claim is the one that isn’t coming from Amazon. While some see this as a black & white issue (no Amazon support, ignore), I don’t. I’ve seen too many of my clients fall victim to shady tactics like bogus inauthentic and counterfeit claims made by a belligerent and aggressive competitor when they ignored the initial letter. These claims can hurt you, tie up your listing and cost you money. They can lead to your account being suspended which will lose you a lot.

I recommend at least one polite email from you asking them to provide proof of their claim and to be clear as to what part of the listing is infringing on their copyright. If they won’t do that within 5 business days, then you most likely have someone who is bluffing. If they escalate and try other tactics, then you can show Amazon that you immediately responded in a helpful way and they’re the ones being jerks.

If they never provide proof, then you can state that they are unable or unwilling to support their own claim which is suspicious.

While you can say you never intend to infringe on a copyright, don’t say that you are sorry for infringing or anything like that. They need to prove their claim. Don’t admit guilt. Even if you intend not to sell that product again, don’t admit guilt. “We have made a business decision to no longer sell this product on Amazon,” is acceptable.

Decide how hard you want to fight this claim. For some of my clients it isn’t worth it. They delete their listing and move on. For others, this is a high producing ASIN and they will fight it to the bitter end. In that case, I strongly suggest getting help both from an Amazon expert like us and an IP attorney. We can help with the Amazon side and the lawyer can help with the legal side. Just saying, “here’s the name and contact information of my IP attorney,” can work wonders for the bluffers.

If their claim is real, however, be aware that you are now entering into the legal battlefield. It will cost you money. Be sure you chose an attorney who understands Amazon as well as IP law. I have a couple of attorneys I recommend to our clients in these situations.

As a final word, the bottom line on copyright infringement is that Amazon takes it very seriously. If your complainer has gone through Amazon to make their claim, you MUST respond even if you never plan to sell that product again. Amazon will also want a Plan of Action from you as to how you will avoid these claims in the future.

If the complainer hasn’t gone through the Amazon channel, then you don’t have to worry about Amazon shutting you down at this time. You DO have to worry about dirty seller tricks, however. Be on the lookout for those and fight them if you see them. For this reason, I recommend at least one polite response to a letter so you can get a better feel as to whether or not they are bluffing and whether or not they actually have proof. Find out what they want at least. Many copyright infringement claims are cleared up with new pictures and listings.

There is nothing stopping someone with a legitimate claim from serving you with legal papers at your business address…if they can find you. While Amazon’s robots can’t search through public records, lawyers can.

What If I’m the Complainer?

If you feel that other sellers are infringing on your copyright and you have registered your trademark and listings with Amazon, then they will support you in your claim. There is a process for filing these claims with Amazon and it is pretty straight forward what to do. Search SellerCentral help for “Report Infringement” if the link does not work for you.

Be aware, however, that many of my clients have not set themselves up properly. Their brand is not permanently affixed to their product, for example. In those cases, Amazon considers them as selling a generic product with a sticker, basically. Make sure you are set up properly in the brand registry before going after other sellers. You will need to provide proof of your trademark filing and then an affidavit that you have not authorized other sellers to sell on your account.

If you want to send that initial letter through the platform, I suggest having it written by an attorney. They will make sure that you keep within the law and don’t make wild accusations, etc., that could get you in trouble later. A letter may be enough to get some sellers off your listing and is the smart way to go. What if they ignore you? Talk to your lawyer about next steps and how far you are willing to go to protect your intellectual property. DO NOT play games on the platform. They could seriously backfire on you. It is OK to make a purchase of a competitor’s product to take a picture and show Amazon that it does not match the listing. It is NOT OK to buy dozens of units and then return them all on the same day to mess with the other seller’s metrics. That is manipulation of the platform.